United States Court of Appeals

for the Fifth Circuit ____________

No. 22-11039

____________

United States of America, 

Plaintiff—Appellee,

versus

Adam Joseph Schultz, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:22-CR-162-1

______________________________

Before Higginbotham, Smith, and Elrod, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

After pleading guilty to one count of conspiracy to commit wire fraud

and receiving a 120-month sentence, Defendant Adam Joseph Schultz 

challenged his sentence. We REMAND to the district court to conform the 

written judgment to the oral pronouncement of his sentence and AFFIRM

in all other respects.

I

From November 2020 through February 2021, Schultz and his coconspirators, Kevin Michael Davis, Charles Wayland Lanier, and Matthew 

United States Court of Appeals

Fifth Circuit

FILED

December 20, 2023

Lyle W. Cayce

Clerk

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Pace Sharp, engaged in a scheme to fraudulently obtain vehicles. They used

the dark web1 to obtain car dealerships’ log-in credentials for Manheim, an 

online vehicle exchange. They used the credentials to purchase and pay for 

vehicles with the car dealerships’ money. Once the payment was made, 

Schultz and his co-conspirators used the purchase documents to pick up the 

vehicles. In total, they purchased or attempted to purchase nineteen vehicles 

worth a combined $766,249. They physically obtained eleven of those 

vehicles, which were worth a combined $442,213.

Schultz pleaded guilty to one count of conspiracy to commit wire 

fraud in violation of 18 U.S.C. § 1349 (18 U.S.C. § 1343). The PSR 

recommended a base offense level of seven. It recommended a fourteen-level 

increase based on the loss amount attributable to the nineteen vehicles 

Schultz intended to steal ($766,249). The PSR also recommended two-level 

enhancements for: (1) using sophisticated means; (2) engaging in a scheme 

to steal or receive stolen vehicles; (3) being an organizer or leader in the 

criminal activity; and (4) obstructing justice. The PSR subtracted three 

levels for acceptance of responsibility, resulting in a total offense level of 

twenty-six.

Regarding Schultz’s criminal history, the PSR classified an April 2021 

incident in which Schultz was stopped while driving a stolen vehicle as 

criminal history, not relevant conduct.2 During the April 2021 arrest, officers 

found debit cards and addresses belonging to other individuals, as well as a 

_____________________

1 The dark web is an area of the internet accessible only by using an encryption tool.

It provides anonymity and privacy online, and perhaps consequently, frequently attracts 

those with criminal intentions. Gareth Owen & Nick Savage, The Tor Dark Net, Global 

Commission on Internet Governance, Paper Series No. 20, 1 (2015). 

2 Following the arrest, Schultz pleaded guilty to fraudulent possession of 

identifying information.

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syringe containing methamphetamine, in the car. Schultz received a 

criminal-history score of fifteen, putting him in criminal-history category VI.

With a total offense level of twenty-six and a criminal-history category of VI, 

Schultz received an advisory guideline range of 120 to 150 months in prison.

Schultz objected to the PSR on the grounds that it: (1) improperly 

classified his April 2021 offense as criminal history, rather than relevant 

conduct, resulting in two extra criminal-history points; and (2) failed to give 

him a two-level reduction for a partially completed offense under U.S.S.G.

§§ 2B1.1 and 2X1.1. The district court rejected both of Schultz’s objections. 

The district court imposed a sentence of 120 months and stated that it would 

have imposed the same sentence even if it was wrong about either of 

Schultz’s objections. In its oral pronouncement of the sentence, the district 

court stated that Schultz’s federal sentence would run concurrently with any 

sentence imposed in his state cases. In the court’s written judgment, entered 

the same day that the oral pronouncement was made, the court stated that 

the federal sentence would run consecutively with any state sentences.

II

Because Schultz preserved his objections to the district court’s 

findings, we review the district court’s interpretation of the Sentencing 

Guidelines de novo and its factual findings for clear error. United States v. 

Sanchez-Rodriguez, 830 F.3d 168, 171 (5th Cir. 2016).

A

Schultz argues that the district court committed reversible error by 

treating his state conviction for fraudulent use or possession of identifying 

information as criminal history instead of relevant conduct.

To determine whether an offense is part of the same course of conduct 

as the offense for which the defendant was convicted, courts look to: (1) the 

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similarity of the offenses; (2) the regularity of the offenses; and (3) the time 

interval between the offenses. United States v. Lindsey, 969 F.3d 136, 141 (5th 

Cir. 2020) (citing U.S.S.G. § 1B1.3, cmt. n.5(B)(ii)). A weak showing as to 

any of the factors does not preclude a finding of relevant conduct, but it does 

require a stronger showing from one of the other factors to compensate for 

the deficiency. United States v. Rhine, 583 F.3d 878, 886 (5th Cir. 2009). To 

determine the similarity of the offenses, courts must consider whether “there 

are distinctive similarities between the offense of conviction and the remote 

conduct,” or whether the offenses are merely “similar in kind.” Id. at 888

(citations omitted).

The April 2021 offense was appropriately classified as criminal 

history. The similarity factor strongly favors the government’s position. The 

car in the April 2021 offense was physically stolen, while the vehicles 

underlying the wire fraud offense were fraudulently obtained through an 

online vehicle exchange. There is no suggestion that the instruments of 

identity theft found during the April 2021 arrest were used to obtain the 

vehicle. By contrast, when Schultz was arrested in January 2021 for the 

conduct for which he ultimately pleaded guilty, he was in a vehicle 

fraudulently purchased from the Manheim online vehicle exchange and the 

identity theft materials found in the vehicle were used for other Manheim 

transactions. These differences show the offenses were at most “similar in 

kind.” Rhine, 583 F.3d at 888–89 (finding offenses were merely similar in 

kind where one cocaine offense involved a small sale to an individual and the 

other involved participation in a major drug-trafficking ring). The April 2021 

arrest did not involve any of the same accomplices or victims as the Manheim 

scheme, and it occurred after Manheim learned of Schultz’s scheme and shut 

it down.

The regularity factor also favors the government’s position because of 

the differences in how the cars were obtained. See Lindsey, 969 F.3d at 142 

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(explaining that the regularity analysis asks whether there is a repeated 

pattern of similar unlawful conduct directly linking the purported relevant 

conduct and the offense of conviction). The Manheim vehicles were 

fraudulently obtained using identity theft, not physical theft. Therefore, 

those vehicles support the proposition that Schultz regularly engaged in 

fraud, not that he regularly physically stole vehicles. The record does not 

contain any instance in which Schultz physically stole a vehicle other than 

the April 2021 incident.

The time-interval factor favors Schultz, but it does not compensate

for the weakness in the other factors. The benchmark for temporal proximity 

is generally one year. Rhine, 583 F.3d at 886. The April 2021 arrest occurred 

about ten weeks after the last Manheim vehicle was stolen. While ten weeks 

is well within the benchmark, it does not make up for the lack of similarity 

and regularity between the charged conduct and the April 2021 arrest.3

 

Accordingly, the district court did not err by classifying the April 2021 arrest 

as criminal history rather than relevant conduct.

B

Schultz argues that he should have received a reduction for a partially 

completed offense under U.S.S.G. §§ 2B1.1 and 2X1.1 because his conspiracy 

to commit wire fraud was part of a larger theft.

Application Note 19 of U.S.S.G. § 2B1.1 states: 

In the case of a partially completed offense (e.g., an offense 

involving a completed theft or fraud that is part of a larger, 

attempted theft or fraud), the offense level is to be determined 

_____________________

3 Schultz points to United States v. Ocana, in which this court found subsequent 

conduct was relevant conduct despite a lack of similarity with the charged conduct. 204 

F.3d 585, 589–92 (5th Cir. 2000). Ocana is distinguishable. In Ocana, the regularity factor 

also favored the defendant. Id. at 591. Here, only temporal proximity favors Schultz.

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in accordance with the provisions of §2X1.1 (Attempt, 

Solicitation, or Conspiracy) whether the conviction is for the 

substantive offense, the inchoate offense (attempt, solicitation, 

or conspiracy), or both. 

U.S.S.G. § 2B1.1 cmt. (n.19.)

Application Note 4 of U.S.S.G. § 2X1.1 states:

In certain cases, the participants may have completed (or have 

been about to complete but for apprehension or interruption) 

all of the acts necessary for the successful completion of part, 

but not all, of the intended offense. In such cases, the offense 

level for the count (or group of closely related multiple counts)

is whichever of the following is greater: the offense level for the 

intended offense minus 3 levels (under §2X1.1(b)(1), (b)(2), or 

(b)(3)(A)), or the offense level for the part of the offense for 

which the necessary acts were completed (or about to be 

completed but for apprehension or interruption). For example, 

where the intended offense was the theft of $800,000 but the 

participants completed (or were about to complete) only the 

acts necessary to steal $30,000, the offense level is the offense 

level for the theft of $800,000 minus 3 levels, or the offense 

level for the theft of $30,000, whichever is greater. 

U.S.S.G. § 2X1.1 cmt. n.4.

No reduction is warranted when the failure to complete the 

substantive offense is the result of intervention by the victim or law 

enforcement. U.S.S.G. § 2X1.1, cmt. (backg’d.)

Schultz’s argument turns on whether §§ 2B1.1 and 2X1.1 apply only 

to situations in which the defendant was charged with the larger offense or 

whether they also apply to situations in which the defendant intended a larger 

offense for which he was not charged. Though there is some textual basis for 

Schultz’s position, it is clearly foreclosed by our precedent.

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While we have not specifically held that a defendant must be charged 

with the larger crime to be eligible for a partially completed offense reduction, 

we have repeatedly upheld sentences when the charged crime was arguably 

part of a larger intended theft, provided the elements of the charged crime 

were completed. United States v. Popa, 835 F.3d 506, 508 (5th Cir. 2016) 

(explaining that the focus is on the substantive offense, not additional 

criminal activity needed to cause the intended loss); United States v. Neal, 

294 F. App’x 96, 102 (5th Cir. 2008) (unpublished); United States v. Thomas,

585 F. App’x 869, 870 (5th Cir. 2014) (unpublished). For example, in Popa, 

the defendant was charged with attempting to fraudulently possess 

unauthorized access devices. Popa, 835 F.3d at 507. He intended to use the 

devices to steal $200,000, but he did not obtain any of the money. Id. We

held it was proper not to apply a § 2X1.1 sentence reduction because the 

defendant completed all the elements of the crime for which he was charged. 

Id. at 508. It did not matter that he could have been charged with attempted 

theft, making the completed crime part of that larger crime.

United States v. John, which Schultz mistakenly contends supports his 

position, proves, rather than contradicts, the rule. 597 F.3d 263 (5th Cir. 

2010), abrogated on other grounds byVan Buren v. United States, 141 S. Ct. 1648 

(2021). In John, the defendant fraudulently accessed 76 bank accounts. Id. 

at 269. Because the defendant only made purchases with eight of the 

accounts, we held the district court clearly erred by failing to apply a partially 

completed offense reduction. Id. at 281–84. As explained in Thomas and 

Popa, the uncompleted conduct in Johnwas an element of the crime for which 

the defendant was convicted. 585 F. App’x at 870; 835 F.3d at 508. It was 

not additional criminal activity needed to cause the loss. John is consistent 

with cases such as Popa, which hold that an incomplete offense reduction is 

inapplicable where the elements of the charged crime have been completed.

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Here, Schultz completed each of the elements of the charged crime. 

Wire fraud requires: (1) a scheme to defraud; (2) use of wire communications 

in interstate commerce to further that scheme; and (3) specific intent to 

defraud. United States v. Sanders, 952 F.3d 263, 277 (5th Cir. 2020) (citation 

omitted) (listing elements of fraud). Wire fraud does not require obtaining 

the targeted money or property. E.g., United States v. Tulaner, 512 F.3d 576, 

580–81 (9th Cir. 2008). Failure to physically possess eight of the vehicles, 

the sole basis for Schultz’s argument, does not implicate any of the fraud 

elements. The district court did not err by declining to apply a reduction for 

a partially completed offense.

C

When there is a conflict between a written sentence and an oral 

pronouncement, the oral pronouncement controls. United States v. Martinez, 

250 F.3d 941, 942 (5th Cir. 2001). Here, there is a conflict between the 

written sentence and the oral pronouncement. In the oral pronouncement, 

the district court stated: 

It is the judgment of the Court that the defendant is committed 

to the Federal Bureau of Prisons for a period of 120 months. 

Thissentence shall run concurrent to any future sentence which 

may be imposed in Case No. 12573, 46th Judicial District Court 

of Wilbarger County; Case Nos. 00683773-2021, and 

00683774-2021 out of Collin County Court of Law, No. 6; and 

Case No. CM-2021-00154 out of Ryan County District Court, 

all of which are unrelated in the case, and concurrent with any 

sentence in Case No. 40185020-2021, and 40185021-2021, 

which is pending in the 468th Judicial District Court of Collin 

County, Texas; and Case No. 00683772-2021 which is in 

Collin County, Court No. 6.

In the written judgment, the district court wrote:

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The defendant, ADAM JOSEPH SCHULTZ, is hereby 

committed to the custody of the Federal Bureau of Prisons 

(BOP) to be imprisoned for a term of ONE HUNDRED 

TWENTY (120) MONTHS as to Count One of the 

Information filed on June 7, 2022. This sentence shall run 

consecutively to any future sentence which may be imposed in 

Case No. 12,573 in the 46th Judicial District Court, Wilbarger 

County; Case Nos. 006-83773-2021 and 006-83774-2021 in 

Collin County Court at Law 6; and Case No. CM-2021-00154 

in the Bryan County District Court, all of which are unrelated 

to the instant offense. This sentence shall run concurrently with 

any future sentence which may be imposed in Case Nos. 401-

85020-2021 and 401-85021-2021, both in the 468th Judicial 

District Court, Collin County, and Case No. 006-83772-2021 

in Collin County Court at Law 6, which are related to the 

instant offense.

Because the written judgment and oral pronouncement conflict, we 

REMAND to the district court to amend the written judgment to conform 

with the oral announcement. See United States v. Wheeler, 322 F.3d 823, 828 

(5th Cir. 2003).

* * *

For the foregoing reasons, the district court’s sentence is 

AFFIRMED in part and REMANDED in part so that the written 

judgment can be amended to conform with the court’s oral pronouncement 

at sentencing. 

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